[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Proposed Rules]
[Pages 10185-10187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-848]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 73, No. 38 / Tuesday, February 26, 2008 / 
Proposed Rules

[[Page 10185]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 51

[Docket <greek-i> AMS-FV-07-0140]


United States Standards for Grades of Table Grapes (European or 
Vinifera Type)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the United States Standards 
for Grades of Table Grapes (European or Vinifera Type). These standards 
are issued under the Agricultural Marketing Act of 1946. The changes 
being proposed are based on the request of the California Grape and 
Tree Fruit League (CGTFL) to revise the tolerances to include an 
allowance for shattered berries due to the change of pack style from 
mostly plain pack to consumer size units. The Agricultural Marketing 
Service (AMS) of the Department of Agriculture (USDA), is proposing a 
revision to the voluntary standards to add a 5 percent allowance for 
shattered berries in consumer containers for shipment that are en route 
or at destination. The standards provide industry with a common 
language and a uniform basis for trading, thus promoting the orderly 
and efficient marketing of European or Vinifera Type table grapes.

DATES: Comments must be received by March 27, 2008.

ADDRESSES: Interested persons are invited to submit written comments on 
the internet at: http://www.regulations.gov or to the Standardization 
Section, Fresh Products Branch, Fruit and Vegetable Programs, 
Agricultural Marketing Service, U.S. Department of Agriculture, 1400 
Independence Ave. SW., Room 1661 South Building, Stop 0240, Washington, 
DC 20250-0240; Fax (202)720-8871. Comments should make reference to the 
dates and page number of this issue of the Federal Register and will be 
made available for public inspection in the above office during regular 
business hours.

FOR FURTHER INFORMATION CONTACT: Vincent J. Fusaro, Standardization 
Section, Fresh Products Branch, (202) 720-2185. The United States 
Standards for Grades of Table Grapes (European or Vinifera Type) are 
available by accessing the Fresh Products Branch Web site at: http://www.ams.usda.gov/standards/stanfrfv.htm.

SUPPLEMENTARY INFORMATION: Section 203(c) of the Agricultural Marketing 
Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes 
the Secretary of Agriculture (To develop and improve standards of 
quality, condition, quantity, grade and packaging and recommend and 
demonstrate such standards in order to encourage uniformity and 
consistency in commercial practices.( AMS is committed to carrying out 
this authority in a manner that facilitates the marketing of 
agricultural commodities and makes copies of official standards 
available upon request.

Executive Order 12866 and 12988

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action. This rule has been 
reviewed under Executive Order 12988, Civil Justice Reform. This action 
is not intended to have retroactive effect. This rule will not preempt 
any State or local laws, regulations, or policies, unless they present 
an irreconcilable conflict with this rule. There are no administrative 
procedures which must be exhausted prior to any judicial challenge to 
the provisions of the rule.

Regulatory Flexibility Act and Paperwork Reduction Act

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), AMS has considered the economic impact of this 
action on small entities. The purpose of the RFA is to fit regulatory 
actions to the scale of businesses subject to such actions in order 
that small businesses will not be unduly or disproportionately 
burdened. Accordingly, AMS has prepared this initial regulatory 
flexibility analysis. Interested parties are invited to submit 
information on the regulatory and informational impacts of this action 
on small businesses. Comments also are specifically requested on the 
number and size of producers and handlers of table grapes in the United 
States.
    This rule will revise the U.S. Standards for Grades of Table Grapes 
(European or Vinifera Type) that were issued under the Agricultural 
Marketing Act of 1946. Standards issued under the 1946 Act are 
voluntary.
    Small agricultural service firms, which include handlers, have been 
defined by the Small Business Administration (SBA) (13 CFR 121.201) as 
those having annual receipts of less than $6,500,000, and small 
agricultural producers are defined as those having annual receipts of 
less than $750,000. According to the National Agricultural Statistics 
Service (NASS) report of the 2002 Census of Agriculture, there are 
23,856 grape farms in the United States. Using additional data from the 
Noncitrus Fruits and Nuts 2005 Summary, total fresh utilization of 
grapes was 995,370 tons. Furthermore, the price per ton for grapes in 
2005 was $570.00 and the value of grapes utilized as fresh products was 
$567,523,000. Based on the number of farms (23,856), the average 
producer revenue from the sale of fresh grapes is estimated at 
approximately $23,789 per year. Therefore, the majority of fresh grape 
producers may be classified as small entities.
    The number of table grape handlers in the United States is not 
known. There are approximately twenty handlers regulated under the 
Marketing Order 925 (7 CFR part 925). Last year, fourteen of the twenty 
handlers subject to regulation had annual grape sales of less than 
$6,500,000. Accordingly, we estimate that the majority of Table grape 
handlers in the United States are small entities. We welcome 
information that the public may offer as to the number and size of 
handlers in the United States.
    The effects of this rule are not expected to be disproportionately 
greater or smaller for small handlers or producers than for larger 
entities.
    The use of grading services and grading standards is voluntary 
unless required by a specific Act, Federal Marketing Order or 
Agreement, or other regulations governing domestic, import or export 
shipments.
    USDA has not identified any Federal rules that duplicate, overlap, 
or conflict

[[Page 10186]]

with this rule. Although there is a marketing order program which 
regulates the handling of European or Vinifera type table grapes under 
the order, the revision being proposed in this action only affects 
shattered berries in consumer size containers en route or at 
destination. As such, the proposed action would not effect table grapes 
under Marketing Order or under Section 8e of the Agricultural Marketing 
Agreement Act of 1937.
    After considering the request of the CGTFL, AMS is proposing to 
revise the standard by adding a 5 percent allowance for shattered 
berries in shipments that are en route or at destination. This revision 
will make the standards more consistent and uniform with marketing 
trends and commodity characteristics. This proposed action will not 
impose any additional reporting or record keeping requirements on 
either small or large grape producers or handlers.

Background

    In November of 2005, AMS received two petitions requesting a 
revision to the United States Standards for Grades of Table Grapes 
(European or Vinifera Type). These petitions were received from the 
CGTFL on November 9, 2005 and Western Growers on November 23, 2005. 
These two trade associations represent more than 85 percent of the 
European or Vinifera type table grape production in the United States. 
They requested an additional 10 percent allowance for shattered berries 
en route or at destination for grapes in consumer containers. The 
petitioners stated that they feel change, specific to consumer 
containers, is warranted as the majority of table grapes are now being 
sold in consumer containers which allows shattered berries to be fully 
utilized/sold.
    On January 24, 2006, AMS published in the Federal Register (71 FR 
3818) an Advanced Notice of Proposed Rulemaking (ANPR) soliciting 
comments on the proposed revision to the United States Standards for 
Grades of Table Grapes (European or Vinifera Type), which included a 10 
percent allowance for shattered berries en route or at destination only 
in consumer units; the comment period ended on March 27, 2006. AMS 
received fourteen comments in response to this notice.
    Twelve comments supported the proposal; one from a regional 
agriculture trade association, one from a table grape association, and 
ten from members of the table grape association. Each of these comments 
indicated that new improvements to consumer packaging resulted in less 
shrinkage and a more sellable product to consumers, and with this 
improvement, a revision of how shatter is scored was needed.
    One comment opposing the proposal was received from a national 
trade association representing wholesale produce receivers. The 
receivers' association stated that an additional allowance for 
shattered berries would be unfairly damaging to receivers and 
consumers.
    Finally, one comment was received from a trade association of 
shippers of table grapes from the State of Sonora, Mexico. The 
shippers' association supported the idea of revisiting the standards 
for table grapes, however, it wanted to investigate the potential 
effects of an added ten percent allowance during the upcoming season 
before supporting this revision. The association indicated that the 10 
percent allowance seemed high.
    As a result of the comments received from the ANPR, AMS published 
in the Federal Register (71 FR 55367) a proposed rule on September 22, 
2006. Taking into account the comments received, AMS believed that it 
would be more beneficial to the overall industry to fully utilize 
shattered berries that are not otherwise defective, in consumer 
containers. The majority of table grapes are now sold in consumer 
containers. A 60-day comment period was allowed for interested parties 
to comment on the proposed revision. The comment period ended on 
November 21, 2006.
    In response to the proposed rule, AMS received fourteen comments. 
Twelve comments supported the proposal. Two comments were from regional 
agricultural trade associations; one comment was from a national table 
grape association; and nine comments were from members of an 
agricultural trade association representing growers, packers, shippers 
and exporters of table grapes. These comments were almost identical to 
the majority of comments received from the ANPR regarding current 
packaging and marketing procedures. The comments indicated that because 
of changes in packaging and marketing practices, a revision of how 
shatter is scored was warranted.
    Two comments opposed the proposal. One comment was received from a 
national trade association representing wholesale produce receivers, 
and one from a grower and shipper of table grapes. The receivers' 
association stated that they saw no reason to provide a special 
allowance for shattered berries in consumer containers. The comment 
stated that the proposed allowance would enable more lower-quality 
product to qualify for the U.S. No. 1 grade. The comment also argued 
that the proposal actually allows 22 percent shatter at destination. 
The commentor also noted that the percentage would be higher if the 
Perishable Agricultural Commodities Act (PACA) Good Delivery tolerances 
were taken into account. PACA tolerances may be taken into account when 
AMS resolves contract disputes under the PACA.
    The comment received from the grower and shipper of table grapes 
opposing the revision stated that it was not appropriate to change the 
current grade standards and thereby downgrade the industry's and 
consumers' perception of table grapes in general. The comment also 
proposed a new grade, ``U.S. No. 1 High Shatter'' as an alternative. 
However, the original proposal was for an additional allowance for en 
route or destination inspections only. Developing a new grade would 
have resulted in that grade needing to be applied at shipping point in 
order for it to be applied en route or at destination. Therefore, 
developing an additional grade was and is not being considered at this 
time.
    One request for a reopening of the comment period was received from 
a receiver/wholesaler after the comment period ended. At that time, AMS 
believed that reopening the comment period would not facilitate 
resolution and would only prolong the then current state of 
uncertainty, with regard to whether a 10 percent allowance for 
shattered berries would be allowed.
    However, due to the lack of industry consensus concerning the 
proposed rule, AMS published in the Federal Register (72 FR 35668) a 
notice to withdraw the proposed rule on June 29, 2007. AMS subsequently 
met with CGTFL and several of its members. CGTFL stated its continued 
interest in an additional allowance of 10 percent for shattered berries 
en route or at destination for grapes in consumer containers because 
the majority of table grapes are now sold in these, which allows 
shattered berries to be utilized.
    AMS also met with the North American Perishable Agricultural 
Receivers (NAPAR), several of its members and other wholesale produce 
receivers. Generally, the receivers stated their opposition to an 
additional allowance for shattered berries based on their belief that 
such an allowance would be detrimental to the grape industry and 
consumers.
    On October 5, 2007, AMS received a second petition from the CGTFL 
requesting a revision to the United States Standards for Grades of 
Table Grapes (European or Vinifera Type). Its petition revision 
repeated the original request for an additional 10 percent

[[Page 10187]]

allowance for shattered grapes en route or at destination for grapes in 
consumer containers.
    The requested change of the petitioners for a 10 percent allowance 
for shattered berries in addition to the 12% tolerance for total 
defects could potentially allow for 22 percent defects in a lot and 
still grade U.S. No. 1 Table. We believe that such a possible 
percentage is too high and would not appropriately reflect what is 
expected by industry and consumers in a U.S. No. 1 Table grade. 
Accordingly, AMS is not proposing this requested 10 percent allowance 
because AMS believes it would weaken the standard and reduce consumer 
confidence in the grade. However, AMS recognizes that a change in 
packaging and marketing has occurred in the Table Grape (European or 
Vinifera Type) industry. Additionally, AMS believes that due to 
improvements in packaging, marketing, and shipping that a revision to 
the current U.S. Standards would be beneficial to both the industry and 
consumers.
    Therefore, AMS is proposing a 5 percent allowance for shattered 
grapes be added to the United States Standards for Grades of Table 
Grapes (European or Vinifera Type). The proposed allowance is specific 
to table grapes en route or at destination in consumer sized packages. 
The standards currently provide in section 51.886, Table II Tolerances 
En Route or at Destination, a 12 percent total tolerance for bunches 
and berries failing to meet the requirements of grade for en route or 
at destination. Revising section 51.886, Table II, by adding a 5 
percent allowance for shattered berries would mean that shattered 
berries would not be scored as a defect against the 12 percent total 
tolerance until the amount of shattered berries exceeds the 5 percent 
allowance. For example, if a lot has 17 percent shattered berries, 12 
percent would be reported as a defect and the lot would meet the 
requirements of the U.S. No. 1 Table grade provided no other defects 
were present; however, if a lot of berries has 18 percent shattered 
berries 13 percent would be reported as a defect, which would cause the 
lot to fail to meet the requirements of the U.S. No. 1 Table grade by 
one percentage point.
    To enable utilization of this revision in the 2008 season, this 
action provides a 30-day comment period for interested parties to 
comment on the proposed revision. Also, AMS is particularly interested 
in comments and factual data that would demonstrate that this proposed 
revision would either positively or negatively impact financially 
interested parties. Specifically, data that shows expected financial 
losses due to adjustments made by shippers or conversely, expected 
additional expenses that would be incurred by receivers due to 
shattered berries in amounts of five percent or greater.
    Accordingly, AMS proposes to amend the United States Standards for 
Grades of Table Grapes (European or Vinifera Type) as follows:

List of Subjects in 7 CFR Part 51

    Agricultural commodities, Food grades and standards, Fruits, Nuts, 
Reporting and record keeping requirements, Trees, Vegetables.

    For reasons set forth in the preamble, 7 CFR part 51 is proposed to 
be amended as follows:

PART 51--[AMENDED]

    1. The authority citation for Part 51 continues to read as follows:

    Authority: 7 U.S.C. 1621--1627.

    2. In (51.886, paragraph (b), Table II is revised to read as 
follows:

Subpart--United States Standards for Grades of Table Grapes 
(European or Vinifera Type)


Sec.  51.886  Tolerances.

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(A) For bunches failing to meet color requirements..............              10              10              10
(B) For bunches failing to meet requirements for minimum                      10              10              10
 diameter of berries............................................
(C) For bunches failing to meet stem color requirements.........              10  ..............  ..............
(D) For offsize bunches and for bunches and berries failing to                12              12              12
 meet the remaining requirements for the grade..................
    (a) For shattered berries in consumer size packages an
     allowance of 5 percent is provided. Any percent of
     shattered berries exceeding the allowance of 5 percent
     shall be scored as berries failing to meet the requirements
     of the grade...............................................
Including in (D):
    (b) For permanent defects...................................               8               8               8
    (c) For serious damage......................................               4               4               4
And, including in (c):
    (i) For serious damage by permanent defects.................               2               2               2
    (ii) For decay..............................................               1               1               1
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    Dated: February 19, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-848 Filed 2-21-08; 12:25 pm]
BILLING CODE 3410-02-P